Wednesday, May 30, 2012

I will be on Wisconsin Public Radio tomorrow morning at 7:30 discussing the John Doe probe and the Governor's legal fund.

The
latest talking point for the Democrats is suggestions by some
Democratic lawyers that the Governor is free to talk about the John Doe probe. I have been very careful about what I have written on this. I have a different take than what some of these lawyers have been reported to say. (Although,
their actual comments might have been different and, in any event,
fully exploring these matters in a few paragraphs is tough.)

Part
of the problem here is that no one who has actually seen the secrecy
order is free to talk about what it says. We can make reasonable
assumptions about what it says, but we don't really know. Those who are
subject to it do. Their comments may be entitled to a bit more weight than ours.

But here are some plausible assumptions.

First,
it is not the case that one has the right to "protect one's reputation"
that somehow trumps a secrecy order. That's simply not true. I have never heard of a secrecy order that has a "reputation" or "recall election" exception.

Second,
it is not true that the only way that the Governor could be subject to a
secrecy order is if he testified. He also could be subject to the order
if documents were subpoenaed from him. He could also be subject to such
an order by consent if he was provided with information generated in
the course of the proceeding on the condition of confidentiality. I
wouldn't think that one would normally do that but , then again, such proceedings do not normally involve a sitting governor.

Of
course, If the Governor has been asked to testify or been served with a
subpoena for documents, the order would almost certainly prohibit him from disclosing even that.

Third, it is not the case that the Governor cannot believe that he is not a target unless he has been granted immunity.
"Target" is not a word that the pertinent statutes use. In common
parlance, it suggests that a prosecutor believes that you have done
something wrong and is going after you.
A prosecutor does not
have to tell someone that he is a "target." If he does decide to tell
someone he is not a target, he does not have to (and probably will not)
do so in a way that operates as a legal guarantee. This is why people
hire counsel and form legal defense funds when prosecutors start to
look at their campaigns,

But a prosecutor can informally
tell someone that he is not a target and a person might reasonably
believe it to be so - even if he cannot legally rely on it. That
individual may well be confident that there is no basis on which to
believe he might have done something wrong, even if his conduct is being
investigated. He may, for that reason, be confident he could is not a "target" in the every day sense of the word.

Fourth, it is true that the Governor can discuss matters of which he is aware - or documents that he might possess - independently
of the John Doe as long as he does not do so in way that divulges
information subject to the secrecy order. The last qualification is
important. It may materially limit what someone can and cannot say in
such a way that the better (and fairer) course of conduct is to say
nothing at all. It is not easy to fight with one hand tied behind your
back.

For example, a person who has been served with a
subpoena for documents can't disclose what he was asked for. A person
who has testified cannot reveal questions and answers. Someone who is
being blamed for the conduct of another person who may himself be in
legal jeopardy cannot very well ask that person to explain what really
happened.

Fifth, the Governor may very well, as he has said,
been asked by the DA not to discuss such matters. I cannot assume that
the DA "would not do that" because there is a recall election. He might
very well believe that public discussion would jeopardize his
investigation - no matter who the investigation involves.

Sixth,
as I have pointed out, it is not clear to me that the Governor would
even have certain of the documents he is being asked to produce.

Finally, "explaining" why you have a legal defense fund may involve waiving the attorney-client privilege.
For supposedly "progressive" people to suggest that guilt ought to be
inferred because someone has hired a lawyer is astonishing.

I
understand the frustration of partisan Democrats, As is so often the
case in politics, we have a tendency to believe the worst of people we
disagree with. There are reasons that a John Doe investigation is
secret. One is to facilitate the investigation. Another is to protect
the reputation of innocent people who might be subjected to scrutiny or
asked to provide information This investigation has significant
implications for the lives and reputations, if not of the Governor
(there is so far no evidence that he has done - or even been accused of -
anything wrong), certainly of other people who deserve to have their legal rights protected.

If
other people are ultimately accused of something, it can be dealt with
at that time. To interfere with the process because you don't like
collective bargaining reform, want higher taxes or wish that the state
gave more aid to school districts last year is just wrong.

The latest Barrett campaign ads on the John Doe continue to be a bit
challenged when it comes to things like accuracy. Let's look at a few of
the allegations.

First, the ads complain that a private e-mail system that was set up
by some Walker employees was "illegal." That isn't true. It could be used
illegally but its mere existence violates no law. A commenter to my
last post on the subject asks whether it violates the open records law.
It doesn't, although it would be a violation if it were used to create
documents that qualify as "records" under the law that were then
withheld when requested. They may also be subject to certain retention
requirements. But not every document created by someone who works for the
government is a "record."

If the system were to be used to raise funds from county offices (as
the complaints against Wink and Rindfleisch alleged), that would be
illegal. Whether other political work would be criminal conduct (as
opposed to a violation of internal policy) is a a question deserving it
own post. The answer isn't as simple as it might seem.

Second, the ads argue that Walker ditched the "real numbers" on
employment. As has now been explained exhaustively, that is also false.
All of the job numbers that Walker used are "real numbers" frequently
relied on by economists. You can argue that Walker should have sat on
the QCEW numbers (which, if anything, are the "real" or best numbers) so
that the voters would have gone to the polls ignorant of them. But you
can't say that they are not "real."

Third, the ads maintain that there are thousands of e-mails that show
taxpayer funds used for Walker's campaign. I suppose there could be but
we haven't seen any. The criminal complaints allege that two people
raised money for a candidate other than Walker from their county
offices. That's not legal but it doesn't amount to taxpayer dollars
being used for Walker's campaign.

I could go on but here's the fundamental problem. In response to my
last post on the issue which pointed out that the DA's office has had
these e-mails for a long time and has not accused the Governor of
anything, some commenters argue that sometimes investigations go on for a
long time and he might someday issue charges that might involve or
reflect on the Governor.

I can't prove a negative. But I am pretty sure that it's a bad idea
to recall a sitting Governor because someone has conducted an
investigation and has not accused him of anything but, who knows, might
do so someday.

As I explained in my last post calls on the Governor to "release"
these e-mails are disingenuous. Even if he has them, he does not appear
to be free to release them or even to explain them.

But here's a thought experiment.

What would Tom Barrett say if he was called to release all personal
e-mails from his staff - those sent on private accounts and from private
devices - which mention him, Walker, the campaign, etc.? What would
they show?

I don't know. But since we are being called upon to speculate, here's
a reasonable surmise. Given the nature of political appointees, I
suspect that they would show some political activity by city employees
during normal business hours that was undertaken from city offices. That
would not scandalize me and, depending on the details, I wouldn't think
it would amount to a crime.

But I don't know. I also don't know that the John Doe investigation
has or will come anywhere close to an allegation against the Governor.
If I were running for political office, I would hope that I wouldn't
engage in speculation, innuendo and distortion about things I don't
know.

Sunday night I appeared on Bruce Dumont's "Beyond the Beltway"
radio program which originated from WUWM. Other panelists included Rob
Henken from the Public Policy Forum and Jack Norman from the Institute
for Wisconsin's Future.

One of the more interesting topics of discussion was the role of
"moderation" and "cooperation." One of the criticisms of Governor
Walker's reforms is that he should have "compromised." I am not so sure
that criticism works in light of the way in which the Democrats and
public employee unions responded, but I want to address the issue more
generally.

Compromise can be a necessary tactic. It is often better to get half
of a loaf than no loaf and compromise is sometimes required to get a
worthwhile thing done. Perfection ought not to be the enemy of the good
and all that.

But that isn't what we're talking about here. The Republicans had the
votes to do what they wanted. The argument for compromise was not that
it was a necessity. The claim is that it would have been good, in and of
itself, for the Walker administration to do less than what it was able
to do and thought to be desireable. In this view, "compromise" is as
much an end as a means. (A similar argument was made by Republicans
concerning what became ObamaCare when the Democrats still had 60 votes
in the Senate.)

I wouldn't dismiss this out of hand. There is something to be said
for incremental change and for acting in a way that minimizes public
discord. When there are many issues and when political fortunes are
bound to change, compromise can have a value beyond the issue on which
compromise is reached.

But not always. You can't elevate compromise to a principle that
trumps the desire for comprehensive reform whenever that reform is
opposed by a vocal minority. To do so does not simply enable "things to
get done." It ensures that certain kinds of things - fundamental changes
- will never be done.

Sometimes existing arrangements need to be substantially altered.
People with a vested interest in the status quo will not like it and a
certain amount of civic pain may be a unavoidable cost of moving
forward.

Getting back to the particular case of the Walker reforms, my own
view is that restricting collective bargaining was such a case. Allowing
government to jettison the inflexibility that results in public
services costing more than they should and being less effective than
they can be, e.g., seniority rules, lock step compensation, cumbersome
work rules, tenure, etc., was a critical. This is particularly so in
public education.

I understand that other well-intentioned and intelligent people
differ. But appealing to compromise as principle won't resolve that
difference.

Thursday, May 24, 2012

So what about the Governor's legal defense fund? Is there something funny going on? Is additional disclosure required?

Phil Walczak, Mayor Barrett's Deputy Campaign Manager, is sending around an e-mail claiming that the Governor can only set up a legal defense fund under the following circumstances:

Scott Walker is being charged with a crime

Scott Walker thinks he is being charged with a crime

Scott Walker is paying for the defense of crimes

Scott Walker has been convicted

All of the above

I assume that Mr. Walczak is not a lawyer. But he ought to have sought the advice of one before he sent this e-mail. Tom Barrett, of course, is a lawyer. He ought to be embarassed that such a blatant mistatement of the law has gone out in his name.

You can certainly set up a legal defense fund if you are charged with or convicted with a criminal violation of chapters 11 and 12 (which deal with campagn finance and certain related activity).
But sec. 11.64(1) of the statutes also authorizes the creation of such a fund whenever a candidate or public official or his or her agent "is being investigated for" a potential criminal violation of chapters 11 or 12 of the statutes. You don't have to be a lawyer to understand that being "investigted for" is not the same as "being charged with" or even thinking that you are "being charged with" a crime. Even Mr. Walczak, however he may be gripped with partisan fervor and panic at his guy's lousy poll numbers, should be able to understand that.

To establish a legal defense fund, there need not be an actual violation of the law. There need not be a charge. It is not even necessary to show that you are a "target" in the sense that the prosecutor suspects that you may be guilty or is trying to prove that you are. (As I explained in my last post, you do not necessarily know these things. A prosecutor doesn't have to tell you and is not bound by whatever he or she does tell you.) It is only necessary that your conduct is being investigated for potential criminal violations of the pertinent laws.

Nor is it even necessary for Scott Walker to be the one who is being investigated. If the agent of a candidate or a public official is being investigated, he or she can establish a fund. This is obviously not the same as "paying for the defense of crimes."

The petition calls on the Governor to produce e-mails from what it calls an "illegal e-mail network" in his office. This is a loaded question. First, it assumes that the network was "illegal." I don't know that and neither does Mr. Walczak. There is nothing intrinsically illegal about public employees using private e-mail. It really depends what it was used for. The DA has alleged that two county employees illegally used it to raise money for a candidate other than Scott Walker from their county offices. He has alleged nothing else. Second, Walczak assumes, without evidence, that Walker knew about so-called secret e-mails and that he is in possession of them. I suspect that he does not have them and, in all likelihood, never did. Third, it assumes that releasing such information would not violate a secrecy order issued in the course of the John Doe proceeding. Again, neither I nor Mr. Walczak know that. I haven't seen the secrecy order and I don't know what, if anything, the Governor has and how it relates to the John Doe.

I understand that the Democrats are disappointed that, after a proctological examination that has taken almost two years, no one has accused Governor Walker of anything illegal. But wanting something to be so does not make it so.

Thursday, May 17, 2012

We are about to get the estimate derived from the establishment
survey on jobs gained or lost in April. As reported in this morning's
paper, the estimate is expected to be disappointing because the national
numbers for April were disappointing. In addition, if Department of
Revenue economist John Koskinen's suggestion that our state's numbers
are improperly benchmarked and understate economic activity, we might
expect that to continue.

But there are a few things that we know for sure.

First, the claim that Wisconsin lost jobs in 2011 is wrong.
Sorry, but an actual count (and the QCEW is pretty close to that)
trumps an estimate. The reason that the surveys are used is that the
QCEW - as its name suggests - comes out quarterly and even then at a
substantial delay. (The numbers that were released "early" are for a
period ending almost five months ago - December 31, 2011.) But you can't
contradict a count with a survey. That narrative is over.

This isn't "fiction" and it isn't "made up" or "new" numbers. The
QCEW is a standard economic measure that the federal government has used
for years. The most that can be said is that we don't know how
Wisconsin's job gains in 2011 compared to other states.

Second, the argument over monthly numbers is not over which
one is the most accurate or the best, but about what they tell us
together. This is something that the media hasn't quite gotten
to. We are looking at a number of measures - jobs gained or lost based
on the establishment survey, jobs gained or lost based on the household
survey, the unemployment rate, increases or decreases in unemployment
claims, tax collections and periodic measures in personal income growth.
All have their strengths and weaknesses. What is significant is that
only one measure (the establishment survey) points to job losses. The
others point int the other direction. We are normally skeptical of
outliers. When most indicators tell us that jobs are growing and the
economy is improving, they the ones that are probably right.

Third, the most important thing may be that we are having this debate.
Remember, this is not a normal election. It is a recall. The Democrats
are asking us to do something that has happened only twice in the
history of this country. Having had a number of failed strategies, they
now are asking us to do it because they think Scott Walker has "wrecked"
the state's economy. If Walker's policies justify making him the third
Governor in the history of the nation to be recalled, they better have
been pretty bad.

But if they were that bad, we wouldn't need to be having esoteric
arguments over quarterly censuses and benchmarked surveys and tweaked
numbers. If Scott Walker deserved to be recalled for "wrecking" the
economy, we wouldn't need any numbers at all. We'd see newly shuttered stores and homeless encampments on the lakefront. We'd see Detroit.

But we don't. We see a state that is in better fiscal shape than it
was a year ago with rising tax revenue. We see a state in which we were
told that the new budget would lead to disaster, but where disaster is
no where to be seen. To be sure, the budget entailed hard choices and
cutting things that we might have preferred not to cut, but those
choices were inevitable.

The recall is about a garden variety policy dispute. It is about the
prerogatives of the public employee unions and Party of Government being
challeged. Let's just admit that and move forward.

Wednesday, May 16, 2012

I have been behind in cross posting my Purple Wisconsin stuff here. My take on the emerging job debate can be found here,here and here.

There is a larger point here. If you want to recall the Governor of a state because of jobs, don't you think that you need to have better evidence than what is present here ? If Governor Walker had harmed the state so badly that he ought to be removed from office after one year - indeed before anything that he might have done could have much on an impact - don't you think you ought to have unambiguous numbers - much less numbers that mostly seem to point to job gains rather than losses?

The fact is this: The recall has nothing to do with jobs. It has nothing to do with so called "devastating" cuts with barely discernable impacts. It has everything to do with a direct challenge to liberal hegemony. It is about collective bargaining and the party of government. We won't hear about these things in the three week remaining because they aren't winning issues.

Monday, May 14, 2012

On this first day of Purple Wisconsin, our text is the faux outrage over Scott Walker’s use of the phrase “divide and conquer” in describing the reforms that became Act 10. Tom Barrett pronounces himself “flabbergasted” and is apparently made weak in the knees by the supposed fact that the Governor talks one way to a “billionaire supporter in private” and another way to the public.

Can we please grow up?

Let’s deal first with the claim that “divide and conquer” sounds “nasty.” As the saying goes, politics ain’t bean bag. Outrage at politicians for acting like politicians is like getting upset at dogs for chasing cats. Walker and the Republicans tried to win. They adopted strategies to do so. All politicians do this and all of them speak more candidly about it with their friends. If we were to film Tom Barrett talking with, say, George Soros, we might hear something similar.

Sometimes these strategies involve incremental reform. You take what you can get now and plan to seek more later. To put it in a different context, if you want same sex marriage, you start with civil unions. Later, when the political climate is more favorable, you take the next step. (Cf. President Obama.) If you want to raise taxes generally, you begin with the very wealthy.Divide and conquer? Live with it.

How about the claim that the comments signaled some unstated future plan to adopt “right to work” laws applicable to private unions?“Right to work” laws provide that one does not have to belong to a union simply because a majority of one’s co-workers have decided to join. How you feel about that depends on how you value individual freedom as opposed to concern about someone obtaining the “benefits” of unionization without paying for them. Given that those individuals who choose not to join the union don’t believe that there are benefits – or at least that those benefits don’t justify the cost, I come down in favor of such laws. The Republicans say that they are not on the agenda and there is no reason not to believe him. But I wouldn’t be upset if they were to be proposed.

More fundamentally, however, the comments at issue don’t really seem to be about “right to work” laws in the private sector. Even though the Governor was asked about such laws, his answer was about addressing the fiscal catastrophe that he had inherited. He explained that limiting the power of public employee unions was necessary to get the state’s budget in order. This is, you will recall, precisely what he said in promoting Act 10. In other words, the Governor told his “billionaire supporter in private” exactly what he told the rest of us in public. Perhaps that is why he and Ms. Hendricks were willing to have their conversation on film.

This phony controversy is also ironic.

The comments that make Tom Barrett woozy – the idea that limiting collective bargaining would enable local governments to adjust to unavoidable reductions in state aid – describe precisely what Tom Barrett was able to do after Act 10 was adopted. He was not so “flabbergasted” that he was unable to balance the city’s budget by using the new law’s provisions. What shocks him now is what helped him last summer. What he criticizes today, he embraced then.

Thursday, May 10, 2012

But I was flabbergasted by Tuesday's election results. I literally could not believe what I was seeing on Tuesday night.

There is no way around the fact that the turnout for Scott Walker was highly unusual. As Christian Schneider points out, elections in which only one party has an actual contested primary (and, no, Arthur Kohl-Riggs does not count) generally results in much higher turnout for the party with a contest. Whether it is the Democrats or Republicans, the party with a primary generally sees turnout at 200-250% of the party without. We saw the same pattern in the recent presidential primary. Many more people voted in the GOP primary.

The GOP did about nothing to get out the vote this week. Believe me. I know. My phone never rang. My mailbox was empty. I got a few e-mails but, as GOTV goes, there was nothing. Even talk radio was largely focused on the Democrats.

So what does it mean? The Democrats' turnout was not bad but one wonders how much more there could be. Their story has been that there is a groundswell of popular furor that will sweep Walker out of office. But how many voters could be enraged at Walker and yet not bother to vote in the primary to choose his opponent? You have to wonder how low the ceiling is for the Democrats.

On the other hand, the fact that so many Republicans turned out to case a symbolic vote suggests a large and highly motivated Republican base. It is easy to imagine Walker voters staying home for a primary that meant nothing. You have to wonder how high the ceiling is for the Republicans.

Of course, the Democrats can tell a story. Lots of anti-Walker voters don't care who his opponent is, the unions pulled back their ground game when they saw Falk couldn't win, Walker's support is limited to highly motivated conservatives, etc.

But, among themselves, the Dems have to be shocked and worried.

As for my side, I once tried a case that went on for weeks and involved many lawyers. One of the guys on my side of the case - a wonderful lawyer who is now a judge - would always bring us to earth when we thought things were going well.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.